Benson v. State

Citation419 P.3d 484
Decision Date05 June 2018
Docket NumberNo. 50270-4-II,50270-4-II
Parties Austin J. BENSON, Appellant, v. STATE of Washington, Respondent.
CourtCourt of Appeals of Washington

Vitaliy Kertchen, Kertchen Law, PLLC, 917 S. 10th St., Tacoma, WA, 98405-4522, for Appellant.

Mark D. McClain, Pacific County Prosecutor's Office, P.O. Box 45, South Bend, WA, 98586-0045, for Respondent.

PUBLISHED OPINION

Sutton, J.

¶ 1 Austin J. Benson appeals the superior court's order denying his petition to restore his firearm rights under RCW 9.41.040(4).1 Benson argues that (1) his 2008 conviction for second degree robbery is not an automatic bar to restoration of firearm rights, and (2) because his two disabling felonies were entered and sentenced on the same day, he does not have any prior felony convictions that are part of his offender score and that would prevent restoration of his firearm rights. We agree with Benson.

¶ 2 Benson also argues that he was not required to prove compliance with the sentencing conditions when the predicate conviction is a felony. The State concedes this issue. We accept the State's concession. Accordingly, we reverse the superior court's dismissal of Benson's petition for restoration of his firearm rights, vacate the order denying the petition for restoration of firearm rights, and remand for further proceedings consistent with this decision.

FACTS

¶ 3 On May 28, 2008, Benson was convicted of one count of unlawful possession of a controlled substance (a class C felony) and one count of second degree robbery (a class B felony). Although these offenses were committed on different dates and charged under different cause numbers, he was convicted and sentenced for both convictions on the same date. Both of these convictions were disabling offenses that prohibited him from owning, possessing, using, or controlling a firearm. RCW 9.41.040(1), (2).

¶ 4 On March 2, 2017, Benson petitioned for restoration of his firearm rights. In addition to acknowledging the convictions described above, he stated that on August 21, 2009, he had also been convicted of third degree driving with a suspended or revoked license, a misdemeanor. He further alleged that (1) he had been in the community for more than five years without being convicted of any felony, gross misdemeanor, or misdemeanor crimes, and (2) no charges were pending against him in any court.

¶ 5 The State objected to Benson's restoration petition, arguing that (1) under RCW 9.41.040(4)(a), his class B second degree robbery conviction was an automatic bar to restoration, (2) Benson had not provided proof that he had completed the sentencing conditions of his two felony convictions, and (3) under RCW 9.41.040(4)(a)(ii)(A), Benson was not entitled to have his rights restored because his class B second degree robbery conviction had not yet washed out as a felony point. Benson responded that (1) his class B second degree robbery conviction was not an automatic bar to restoration, (2) he did not have to prove compliance with the sentencing conditions, and (3) under Rivard v. State , 168 Wash.2d 775, 231 P.3d 186 (2010), the class B second degree robbery conviction did not prevent restoration of his firearm rights because it was not a "prior conviction."

¶ 6 The superior court denied Benson's petition based on the State's first argument, that the second degree robbery conviction was an automatic bar to restoration.2

¶ 7 Benson appeals.

ANALYSIS
I. SECOND DEGREE ROBBERY NOT AN AUTOMATIC BAR

¶ 8 Benson argues that the second degree robbery conviction is not an automatic bar to restoration.3 We agree.

¶ 9 RCW 9.41.040(4)(a) provides:

Notwithstanding subsection (1) or (2) of this section, a person convicted ... of an offense prohibiting the possession of a firearm under this section other than ... robbery , ... who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:

(Emphasis added).

¶ 10 The first sentence of RCW 9.41.040(4)(a) excludes certain offenses for which a defendant received a probationary sentence under RCW 9.95.200 and dismissal of the charge under RCW 9.95.240 from the firearm prohibition. RCW 9.41.040(4)(a). The first sentence does not say that those convicted of robbery cannot petition to restore their firearm rights.4

¶ 11 Instead, it is the second sentence of RCW 9.41.040(4)(a) that addresses the restoration of firearm rights. This second sentence allows for the restoration of firearm rights for persons who have been convicted of some felonies, but it does not allow for the restoration of for persons who have been convicted of a class A felony, a sex offense, or who have had a maximum sentence of at least 20 years. The second sentence does not exclude all robberies from restoration of firearm rights. Thus, the trial court erred when it concluded that the class B second degree robbery was an automatic bar to restoration.

II. " PRIOR FELONY CONVICTIONS "

¶ 12 The State also argues that Benson is not entitled to restoration of his firearm rights because his other current offense, the class B second degree robbery conviction, has not yet washed out of his offender score and this offense precludes restoration of his firearm rights under RCW 9.41.040(4)(a)(ii)(A). We disagree.

¶ 13 Benson argues that under Rivard , he is entitled to restoration of his firearm rights because he does not have any prior convictions that counted as part of his offender score as required under RCW 9.41.040(4)(a)(ii)(A). The State responds that Benson's other current offense, the second degree robbery, qualifies as a "prior conviction" that precludes relief under RCW 9.41.040(4)(a)(ii)(A) because second degree robbery is a class B felony offense that has not yet washed out of his offender score. Whether an other current offense qualifies as a "prior conviction" that can preclude firearm restoration is an issue of first impression. Based on the plain language of RCW 9.41.040(4)(a)(ii)(A) and RCW 9.94A.525(1),5 we conclude that an other current offense is not a "prior conviction" for purposes of firearm restoration.

¶ 14 We review issues of statutory interpretation de novo. State v. Gray , 189 Wash.2d 334, 339, 402 P.3d 254 (2017). "When interpreting statutes, we must discern and implement the intent of the legislature. We look first to the plain meaning of the statutory language, and we interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous." Rivard , 168 Wash. 2d at 783, 231 P.3d 186 (internal citation omitted). But we avoid a reading that produces absurd results. Tingey v. Haisch , 159 Wash.2d 652, 663–64, 152 P.3d 1020 (2007).

¶ 15 RCW 9.41.040(4)(a)(ii)(A) allows for restoration of firearm rights if (1) the defendant has spent "five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes," and (2) "the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525." (Emphasis added). The State does not dispute that Benson has spent five or more consecutive years in the community without other convictions or dispute that he is not currently charged with any crimes. Thus, the sole issue here is whether "prior felony convictions" that "counted as part of the offender score under RCW 9.94A.525" includes other concurrent convictions that were entered or sentenced on the same day. See RCW 9.41.040(4)(a)(ii)(A). We hold that "prior felony convictions" that "counted as part of the offender score under RCW 9.94A.525" do not include other current convictions that were entered or sentenced on the same day.

¶ 16 Benson argues that Rivard is dispositive. Although Rivard is relevant, it does not resolve the issue here. Rivard establishes that we must examine whether the petitioner had other felonies before the date of the disabling felony conviction rather than looking at the facts that existed at the time of the firearm restoration petition. 168 Wash.2d at 784, 231 P.3d 186. Rivard was convicted of a single offense, so our Supreme Court did not address the situation we have here where the petitioner was convicted and sentenced for more than one qualifying felony that prohibited the possession of a firearm at the same time. Instead, the plain language of RCW 9.41.040(4)(a)(ii)(A) and RCW 9.94A.525(1) resolves this issue.

¶ 17 As noted above, RCW 9.41.040(4)(a)(ii)(A) allows for restoration of firearm rights if "the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525." (Emphasis added). RCW 9.94A.525(1) provides:

A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589.

(Emphasis added).

¶ 18 Benson's two felony convictions were entered and sentenced on the same day, so they are other current offenses in relation to one another, not prior convictions under RCW 9.94A.525(1). The mere fact...

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4 cases
  • City of Seattle v. Long
    • United States
    • Washington Court of Appeals
    • June 29, 2020
    ...... interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous.’ " Benson v. State, 4 Wash. App. 2d 21, 26, 419 P.3d 484 (2018) (quoting Rivard v. State, 168 Wash.2d 775, 783, 231 P.3d 186 (2010) ). Our fundamental objective when construing a s......
  • City of Seattle v. Long
    • United States
    • Washington Court of Appeals
    • May 4, 2020
    ...and [] interpret a statute to give effect to all language, so as to render no portion meaningless or superfluous." Benson v. State, 4 Wash. App. 2d 21, 26, 419 P.3d 484 (2018). Our fundamental objective when construing a statute is to determine and carry out the legislature's intent. King C......
  • Hart v. Prather
    • United States
    • Washington Court of Appeals
    • August 24, 2020
    ...statute to give effect to all language, so as to render no portion meaningless or superfluous." Benson v. State, 4 Wn. App. 2d 21, 26, 419 P.3d 484 (2018). Our fundamental objective when construing a statute is to determine and carry out the legislature's intent. King County v. King County ......
  • Landes v. Cuzdey
    • United States
    • Washington Court of Appeals
    • May 16, 2023
    ...statute to give effect to all language, so as to render no portion meaningless or superfluous." Benson v. State, 4 Wn.App. 2d 21, 26, 419 P.3d 484 (2018) (quoting Rivard State, 168 Wn.2d 775, 783, 231 P.3d 186 (2010)). Because Landes's argument would require us to disregard the applicable d......

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